In another entry in the genre of liberals-tell-conservatives-what-conservative-principles-mean, law professor Michael C. Dorf argues in an op-ed that if the conservative justices “keep faith with their textualist commitment, they will rule in favor of the plaintiffs” in the cases to be argued next term that present the questions whether Title VII’s ban on employment practices that “discriminate … on the basis of … sex” prohibits discrimination on the basis of sexual orientation and discrimination on the basis of gender identity. But Dorf’s argument, as I see it, misconceives what the conservative textualist commitment consists of.
At the heart of Dorf’s argument is Justice Scalia’s statement in his majority opinion in Oncale v. Sundowner Offshore Services, Inc. (1998) that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” By that proposition, Scalia was making in the statutory context the same distinction between original meaning and original intent that he prominently made in the context of constitutional interpretation. So it would be incumbent on Dorf to show that the original meaning of Title VII bars discrimination on the basis of sexual orientation and gender identity.
Dorf does not undertake to make an argument about original meaning. Instead, he embraces the argument by Second Circuit chief judge Robert Katzmann, in his en banc majority opinion in Zadra v. Altitude Express, Inc., that “because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.” (Emphasis added.) He then applies the same “function of sex” claim to gender identity. But neither he nor Katzmann grounds this “function of sex” claim in the original meaning of Title VII.
As I’ve highlighted, Judge Gerard Lynch’s impressive dissent in Zadra argues that the original public meaning of Title VII does not bar discrimination on the basis of sexual orientation, and the reasoning of his dissent applies with equal force to gender identity. Dorf takes issue with Lynch’s proposition that Title VII’s ban on discrimination on the basis of sex “remains a law aimed at gender inequality, and not at other forms of discrimination that were understood at the time, and continue to be understood, as a different kind of prejudice.” (Lynch’s emphasis.) Specifically, attempting to draw on Scalia’s statement in Oncale, Dorf argues that
there is no principled basis for concluding that the correct implementation of a law’s purpose can go beyond the drafters’ specific intentions but that the correct understanding of the purpose itself cannot go beyond those intentions. [Dorf’s italics; my underlining.]
But a critical flaw in this argument is that Scalia’s statement in Oncale is about meaning, not purpose. And there is indeed a principled basis for concluding that the correct implementation of a law’s meaning can go beyond the drafters’ specific intentions but that claims about a law’s purpose can’t alter or supplement that meaning. That obvious distinction is at the core of the conservative commitment to textualism.
In short, contra Dorf, conservative justices who “keep faith with their textualist commitment” should rule against the plaintiffs in the Title VII cases.